Family fighting ouster from tribe gets court win

A family fighting the San Pasqual Band of Mission’s efforts to eject them from the tribe got a victory in court this week.

The Valley Center tribe is trying to remove about 60 members of the Alto family from its rolls saying they don’t qualify for membership.

San Pasqual, which owns Valley View Casino, has cut off the Altos’ share of casino profits, denied them access to tribal elections and removed them from casino and tribal government jobs.

In 2011, the Altos sued the U.S. Department of Interior, which includes the Bureau of Indian Affairs, for going along with the tribe’s plans to expel them. The tribe has tried to intervene in the lawsuit saying it has the sole authority to decide who belongs and who doesn’t.

The U.S. Ninth District Court of Appeals ruled Thursday that the family’s case against the federal agency could go forward without the tribe’s involvement.

“This is a big victory for them and it gives them hope,” said Tracy Emblem, an Escondido attorney representing the family.

Attorneys for the tribe and the tribe’s chairman could not be reached for comment Friday. In documents, they argued that the court has no jurisdiction over the tribe because it is a sovereign nation and since enrollment decisions are internal tribal matters, the court cannot intervene.

However, in her ruling, Judge Marsha S. Berzon wrote that “the Band is not a required party” in the case because the family is only asking the court whether the BIA acted appropriately in its decisions, not the tribe.

The dispute began in 2008, when the tribe’s enrollment committee decided the Altos descended from a person who was not a member of the tribe.

The family traces its tribal heritage to Marcus Alto Sr., who died in 1988 and whose lineage was questioned by another tribal member. According to the tribe, Marcus Alto Sr. was adopted by a San Pasqual family and was not their biological son.

San Pasqual rules require a biological connection to the tribe.

Under many tribal government constitutions, tribes make final decisions about who belongs. But the San Pasqual tribe’s constitution gives that authority to the Bureau of Indian Affairs.

In 2011, BIA Assistant Secretary Larry Echo Hawk sided with the tribe, overturning an earlier decision by agency’s regional director, who said the evidence submitted by the tribe did not warrant the Altos’ ouster.

In its ruling, the appellate court also upheld a lower court’s decision to temporarily stop the removal of the Altos until the case is decided.

In the meantime, the Altos remain in legal limbo, Emblem said.

Though they are officially enrolled members of the tribe, the Altos don’t get their share of the casino profits — which for each adult family member was nearly $100,000 in 2011, according to court documents. Under a court order, the tribe is supposed to be collecting the payments in a trust fund to be distributed if the family wins its case.

Emblem said some of the family members are working but others have no jobs or can’t work.